BY LT. COL. JASON A. KIRK
Monday, March 22, 2010
The Angel Oak on Johns Island has been the subject of several recent articles, each focusing on how the Sea Island Planned Unit Development (Sea Island) may affect the great live oak. I want to provide an update on the Corps of Engineers’ role thus far in this proposed development.
As the federal agency responsible for administering Section 404 of the Clean Water Act (Act), the Corps determines if wetlands, tributaries or other waters are appropriately within the jurisdiction of the Act.
Any proposal to place fill material into jurisdictional areas requires a federal permit from the Corps, typically requiring that a project be designed in such a way that it avoids or minimizes wetland impacts and includes compensatory mitigation to offset any unavoidable impacts.
In the case of Sea Island, the federal permitting process thus far has involved only the identification of wetlands on the site and a determination if they are jurisdictional. In response to the property owner’s request, our office issued a jurisdictional determination (JD) letter on Aug. 7, 2008, with our finding that the 6.5 acres of wetlands on the 51.7-acre Sea Island site are isolated from other waters of the U.S. and therefore not within the jurisdiction of the Clean Water Act.
A JD letter issued by the Corps is normally valid for a five-year period, regardless of changes in applicable law or regulatory practice, unless new information is brought to light which would warrant revision of the determination before the expiration date.
As part of our initial review of the site and its wetlands, my staff did not note a ditch between the wetland edge and the roadside storm water conveyance system, and thus did not recognize its potential to carry water offsite and to the nearby navigable waters of Church Creek.
However, acting upon information from a concerned citizens group, my staff revisited the Sea Island site on Aug. 18, 2009 to investigate further. This non-wetland feature became a critically important factor, resulting in our reconsideration of the jurisdiction of this wetland.
After my office notified the property owner’s consultants that the Corps was reconsidering the JD, they supplied two work product documents, wherein they had concluded that surface water levels in the wetland do not rise high enough to pass through the conveyance in question. These conclusions were included in our reconsideration of the previously issued JD.
The Corps’ reconsideration of this new information came just as the annual rainy season began. Rainfall events in December 2009 were typical of the season and caused groundwater levels to rise substantially, thereby reducing the amount of water absorbed into the ground and increasing the runoff of water on the surface of the ground into the wetland.
Water began flowing from the wetland through the ditch in question in mid-December, has continued uninterrupted for over two months, and is expected to continue through March 2010.
The monitoring and documentation of this sustained offsite water flow represents new information that was not evaluated as part of our initial determination.
On the strength of this new information, I have revoked the original JD letter and issued a new JD letter asserting Clean Water Act jurisdiction over wetlands on the Sea Island site. This letter is valid for five years.
The decision to revoke a letter from the federal government is a decision that is made only after careful consideration.
We understand that property owners make project development decisions, involving substantial investments, based on the jurisdictional determination issued by the Corps.
Sometimes important indicators of jurisdiction are not easily observed, which makes the jurisdictional status more difficult to correctly identify. This is one reason why the federal government values the public participation process, and this case is a good example of that process in action.
In the interest of making fair, accurate and balanced decisions, the Corps typically cannot comment publicly until investigations are complete, issues are resolved and decisions are finalized.
At this time, I can report that this is the case with the Sea Island project, and that I have issued a corrected jurisdictional determination.
Lt. Col. Jason A. Kirk, P.E., is commander of the Charleston District of the U.S. Army Corps of Engineers.
